State v. Long (Slip Opinion) , 2020 Ohio 5363 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Long, Slip Opinion No. 2020-Ohio-5363.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-5363THE STATE OF OHIO, APPELLEE, v. LONG, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Long, Slip Opinion No. 2020-Ohio-5363.]
Criminal law—Speedy trial—Date on which an appellate court orders a case
remanded is the appropriate date to start the clock to determine the relevant
length of the delay for speedy-trial purposes—A motion to dismiss that
alleges a violation of the right to a speedy trial does not reset the speedy-
trial clock—The four factors to be considered in determining whether there
has been a denial of a defendant’s constitutional right to a speedy trial are
(1) the length of delay, (2) the reason for the delay, (3) the defendant’s
assertion of his right to a speedy trial, and (4) the prejudice to the
defendant.
(No. 2019-0181—Submitted February 12, 2020—Decided November 24, 2020.)
APPEAL from the Court of Appeals for Clark County,
No. 2017-CA-84, 2018-Ohio-5163.
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SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} In this appeal, we determine whether a delay in proceedings that
occurred after the Second District Court of Appeals reversed appellant John W.
Long’s convictions and remanded the matter violated his speedy-trial rights under
the United States and Ohio Constitutions. For the following reasons, we conclude
that it did. Accordingly, we reverse the court of appeals’ judgment, which upheld
Long’s convictions in a second appeal, and vacate the convictions.
Facts and Procedural Background
{¶ 2} In 2015, following a guilty plea, the trial court convicted Long of two
counts of aggravated robbery and one count of failure to comply with an order or
signal of a police officer and sentenced him to serve an aggregate sentence of 11
years in prison. On March 7, 2016, the Second District Court of Appeals reversed
Long’s convictions and remanded to the trial court for further proceedings because
the trial court had not fully advised Long of his constitutional rights during his plea
hearing. State v. Long, 2d Dist. Clark No. 2015-CA-64, 2016-Ohio-837. The facts
relevant to this appeal begin when the court of appeals remanded the case.
{¶ 3} Long remained in the London Correctional Institution until June 21,
2016, when he was transferred to the Clark County jail in anticipation of a hearing
on remand. At a hearing on June 22, 2016, the state told the trial court that it was
willing to extend the same plea offer to which Long had originally pleaded guilty,
with an agreed sentence of 11 years as had been originally imposed. Long’s counsel
asked the court to set the matter for trial. The court said it would order the case to
be scheduled for a final pretrial and ordered Long to remain in the Clark County
jail “pending the new trial date.”
{¶ 4} At a pretrial conference held on September 1, the state reiterated that
it was prepared to extend the same plea offer and the court set a trial date of
September 28. On September 21, Long moved to dismiss on speedy-trial grounds,
arguing that the passage of 198 days from the date on which the Second District
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remanded the case violated his constitutional right to a speedy trial. The next day,
September 22, the trial court held a pretrial conference and set a date for the state
to respond to Long’s motion to dismiss. The court also stated it would use the
September 28 trial date to hold a hearing on the motion to dismiss and that it would
be the last date for Long to accept the offered plea agreement.
{¶ 5} On September 28, the trial court held a hearing on Long’s motion to
dismiss. At the hearing, Long’s counsel submitted a notice that Long was pleading
not guilty and demanding his right to a speedy trial and trial by jury. The court
heard brief statements from counsel for the parties, stated that it had not yet
reviewed the state’s opposition to Long’s motion to dismiss, and allowed the parties
an additional 48 hours “to file whatever filing they want to file” with regard to the
motion to dismiss.
{¶ 6} On October 24, 2016, the court held a brief hearing. The court noted
that the parties were waiting for a decision on Long’s pending motion to dismiss
and asked the bailiff why the case was put back on the hearing docket. The bailiff
stated that he believed the state had requested the hearing, but counsel for the state
was not present to respond. The court then adjourned the hearing. By entry dated
October 26, the court denied Long’s motion to dismiss.
{¶ 7} The next activity on the court’s docket occurred over nine months
later, on August 7, 2017, when Long moved a second time to dismiss the indictment
on speedy-trial grounds. This time, Long pointed to the 518-day delay since the
date on which the Second District remanded the case. The trial court denied the
motion by an entry dated August 16.
{¶ 8} In an entry dated August 21, the trial court noted that the case had
been scheduled for trial on August 16 but that the trial had been continued due to
the court’s scheduling conflict with another jury trial. However, the August 16 trial
date does not appear on the docket.
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{¶ 9} On August 22, Long moved for reconsideration of the trial court’s
denial of his second motion to dismiss. The trial court denied that motion on
September 7.
{¶ 10} On September 21, the court held a hearing at which Long pleaded no
contest to the charges of having a weapon under disability and failing to comply
with an order or signal of a police officer; the other charges were dropped. The
plea agreement included a suggested sentence of a total of 60 months in prison.
The trial court imposed the agreed sentence and allowed jail-time credit from
February 28, 2015.
{¶ 11} On appeal, the Second District affirmed, concluding that Long’s
constitutional right to a speedy trial was not violated during the trial court’s remand
proceedings.
{¶ 12} We accepted Long’s discretionary appeal on the following
proposition of law:
A motion to dismiss alleging a violation of the right to a
speedy trial does not reset speedy trial time. When convictions are
overturned on an appeal, courts must consider all applicable speedy
trial time, beginning on the date that the charges are remanded.
See 155 Ohio St.3d 1445, 2019-Ohio-1707, 122 N.E.3d 206.
Analysis
{¶ 13} The speedy-trial protections of the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution apply when a
conviction is vacated and the case remanded for retrial. State v. Hull, 110 Ohio
St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 20. The time within which a
defendant must be brought to trial is “ ‘a reasonable period consistent with
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constitutional standards.’ ” Id. at ¶ 20, quoting Barker v. Wingo, 407 U.S. 514, 523,
92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
{¶ 14} To determine whether there has been a denial of a defendant’s
constitutional right to a speedy trial, the court considers four factors identified in
Barker: “(1) the length of delay, (2) the reason for the delay, (3) the defendant’s
assertion of his right to a speedy trial, and (4) the prejudice to the defendant.” Hull
at ¶ 22, citing Barker at 530. No single factor controls the analysis, but the length
of the delay is important. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the
balance.” Barker at 530. Generally, a delay that approaches one year is
presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686,
120 L.Ed.2d 520 (1992), fn. 1.
{¶ 15} Review of a speedy-trial claim involves a mixed question of law and
fact. Therefore, we defer to the trial court’s factual findings if they are supported
by competent, credible evidence, but we review the application of the law to those
facts de novo. See State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-
5472, ¶ 17.
Effect of motion to dismiss
{¶ 16} Both parties agree that the date on which the Second District ordered
the case remanded—March 7, 2016—was the appropriate time to start the clock to
determine the relevant length of the delay here for speedy-trial purposes. We agree.
The court of appeals’ basis for choosing a different date—the date on which the
trial court overruled Long’s first motion to dismiss on speedy-trial grounds—
despite the state’s concession that the date of the remand order was the proper
starting point, is unclear. But we see no reason to search for a justification. Using
the motion to dismiss to “reset” the start of the speedy-trial clock back to zero
unfairly penalizes a defendant for invoking the speedy-trial right. Such a rule could
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even create the absurd result that a delay would never reach the presumptively
prejudicial one-year period.
{¶ 17} The court of appeals’ incorrect determination regarding when the
clock started led that court to conclude that the delay was approximately 11 months
and, therefore, not presumptively prejudicial. Because we conclude that the proper
starting point is the date of remand, we find that more than a year passed before
Long entered his plea. Specifically, we agree with the dissenting opinion in the
court of appeals that more than 483 days had elapsed between the date of remand
and the date on which Long filed his second motion to dismiss, even excluding the
time during which Long’s first motion to dismiss was pending. Accordingly, we
presume that the delay was sufficiently prejudicial to warrant consideration of the
Barker factors to determine whether there was an unreasonable violation of Long’s
speedy-trial rights.
Calculate speedy-trial time from remand
{¶ 18} Long points out that the only Barker factor that the court of appeals
did not weigh in Long’s favor was the first factor—the length of the delay. He
argues that this conclusion was based on the court of appeals’ incorrect finding that
the relevant delay was less than one year and not “presumptively prejudicial.” Long
therefore argues that all four Barker factors weigh in his favor and that this court
should vacate his conviction.1
{¶ 19} As discussed above, we agree with Long that the relevant length of
delay in his trial was in excess of one year after the matter was remanded. Thus,
we find the delay is presumptively prejudicial. See State v. Adams, 144 Ohio St.3d
429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 90, citing Doggett, 505 U.S. at 652, 112
1. We recognize that the proposition of law accepted here relates only to the effect of the motion to
dismiss on the proper speedy-trial calculation. And, as noted above, the state has conceded that the
speedy-trial clock started when the case was remanded. But because our review is de novo, we
independently review the application of all the Barker factors to the facts here.
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S.Ct. 2686, 120 L.Ed.2d 520, fn. 1 (“delay becomes presumptively prejudicial as it
approaches one year”). We conclude that this factor weighs in Long’s favor.
{¶ 20} The court of appeals’ incorrect finding about the relevant delay also
affected its conclusion regarding the second Barker factor—the reason for the
delay. The court of appeals found that even though the delay after remand was due
to the inattention of the trial court and the state, the second factor weighed “only
marginally” in Long’s favor because the delay was “only bordering” on being
presumptively prejudicial. 2018-Ohio-5163, ¶ 20. As discussed above, the relevant
delay was well over one year. When the length of the delay is coupled with the
trial court’s and the state’s inattention to Long’s case on remand, we conclude that
the second Barker factor decidedly tips in Long’s favor.
{¶ 21} We further conclude, as did the court of appeals, that the third Barker
factor—the defendant’s assertion of his right to a speedy trial—also weighs in
Long’s favor. Indeed, the consideration of this factor demonstrates why the court
of appeals’ decision to start the speedy-trial clock from zero after the court denied
Long’s first motion to dismiss is inappropriate. It hardly makes sense to task a
defendant with the responsibility to assert his speedy-trial right in order to preserve
a constitutional challenge if the assertion of that right restarts the speedy-trial clock
at zero. Here, Long’s two motions to dismiss on speedy-trial grounds demonstrate
that he did assert his right to a speedy trial; therefore, this factor weighs in Long’s
favor.
{¶ 22} The court of appeals concluded that the fourth factor—prejudice—
marginally weighed in Long’s favor. The prejudice factor in the analysis “should
be assessed in the light of the interests of defendants which the speedy trial right
was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101.
The three interests are “(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility that
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the defense will be impaired.” Id. The third interest warrants special emphasis
because prejudice in that context “skews the fairness of the entire system.” Id.{¶ 23} Here, the court of appeals noted that “Long has suffered anxiety and
pretrial incarceration as a result of the delay in the instant case.” 2018-Ohio-5163at ¶ 22. It also noted that Long “did not claim any particularized trial prejudice in
his motions to dismiss, and the record does not suggest that he has suffered
prejudice of that kind.” Id.{¶ 24} The state argues that the prejudice factor weighs in the state’s favor
because “there was no trial [and] the delay did not affect witnesses, evidence, or
testimony.” The state also asserts that Long’s “interest in oppressive pretrial
confinement is limited” because Long agreed in his plea agreement to serve a prison
sentence. The state contends that Long made no showing of anxiety, and it further
asserts that Long initially “expressed a willingness to serve at least 3 years in prison,
and as a part of his no contest plea, he was willing to spend 5 years.”
{¶ 25} It is true that Long has not asserted a particularized prejudice relating
to the impairment of his defense. But, contrary to the state’s assertion, the prejudice
factor is not lacking simply because Long was allegedly willing to serve a prison
term greater than the time he was confined after the remand and before his plea.
The relevant prejudice inquiry looks at the conditions and circumstances of the
delay before trial. If we looked only at the outcome—that is, the length of the
ultimate prison sentence imposed or the nature of the plea agreement ultimately
reached—the speedy-trial right would be no more than a harmless-error inquiry.
{¶ 26} The United States Supreme Court has recognized that unreasonable
pretrial delay produces more than one sort of harm. Doggett, 505 U.S. at 654, 112
S.Ct. 2686, 120 L.Ed.2d 520. For that reason, the pretrial delay, including
“ ‘oppressive pretrial incarceration’ ” and “ ‘anxiety and concern of the accused,’ ”
are relevant factors to the prejudice inquiry. Id., quoting Barker, 407 U.S. at 532,
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92 S.Ct. 2182, 33 L.Ed.2d 101. And, in Barker, the court described the serious
disadvantages to an accused in pretrial incarceration:
The time spent in jail awaiting trial has a detrimental impact on the
individual. It often means loss of a job; it disrupts family life; and
it enforces idleness. Most jails offer little or no recreational or
rehabilitative programs. The time spent in jail is simply dead time.
Barker at 532-533. Additionally, the court recognized in Doggett that negligence
in bringing an accused to trial does not compel relief in every case, but “neither is
negligence automatically tolerable simply because the accused cannot demonstrate
exactly how it has prejudiced him.” Doggett at 656-657.
{¶ 27} Here, the court of appeals found that the “reason for the delay
appears to be the inattention of the trial court and the State.” 2018-Ohio-5163 at
¶ 19. Indeed, there is no dispute that after Long’s first attempt to assert his speedy-
trial right, the court and prosecution did nothing to advance the case for more than
nine months despite the state’s willingness to offer the same plea agreement it had
offered before he was first convicted. We agree with the court of appeals’
conclusion that Long’s pretrial incarceration for a presumptively prejudicial period
coupled with the anxiety of pending charges on remand tip the balance of prejudice
toward Long. Based on these circumstances, we conclude that the fourth Barker
factor of prejudice weighs in Long’s favor.
{¶ 28} Because all four Barker factors weigh in Long’s favor, we conclude
that Long’s right to a speedy trial was violated after his case was remanded to the
trial court for retrial. Accordingly, Long’s conviction must be vacated.
Conclusion
{¶ 29} For the foregoing reasons, we reverse the Second District’s
judgment and vacate Long’s conviction. Given that Long was released from prison
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on May 23, 2019, and thereafter served a six-month period of postrelease control
that terminated in November 2019, there is no need to remand this matter.
Judgment reversed
and conviction vacated.
FRENCH, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs in the court’s judgment to the extent that it reverses
the judgment of the court of appeals, because the speedy-trial clock begins to run
on the date the court of appeals overturns a conviction and remands the case to the
trial court, but dissents from this court’s judgment to the extent that it vacates
appellant John W. Long’s conviction and would remand the cause to the court of
appeals to evaluate his speedy-trial claim in light of this court’s decision clarifying
the law.
FISCHER, J., concurs in part and dissents in part, with an opinion.
DEWINE, J., dissents, with an opinion.
_________________
FISCHER, J., concurring in part and dissenting in part.
{¶ 30} I agree with the portion of the court’s analysis that concludes that a
motion to dismiss that alleges a violation of the right to a speedy trial does not reset
the speedy-trial clock and that when a conviction is overturned on an appeal, the
speedy-trial clock begins to run on the date on which the court of appeals orders
the case remanded. And I concur in the portion of the court’s judgment reversing
the judgment of the Second District Court of Appeals.
{¶ 31} I respectfully disagree, however, with the portion of the court’s
opinion that weighs the factors set out in Barker v. Wingo, 467 U.S. 514, 530, 92
S.Ct 2182, 33 L.Ed.2d 101 (1972). And I dissent from the portion of the court’s
judgment that vacates appellant John W. Long’s convictions. I do not find any
particular fault with the substance of the court’s analysis on this issue; however,
because the court of appeals did not have the opportunity to consider this case in
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light of this court’s clarification of the law, I would remand the cause to the Second
District so that it may weigh the Barker factors in the first instance, applying the
law as set forth by this court. On these bases, I would reverse the judgment of the
Second District and remand the cause to that court to resolve the remaining issues
in this appeal.
_________________
DEWINE, J., dissenting.
{¶ 32} The majority concludes that the delay that occurred in this case
violated the defendant’s right to a speedy trial under the Sixth Amendment to the
United States Constitution and Article I, Section 10 of the Ohio Constitution. It
justifies this result by referring to the factors outlined by the United States Supreme
Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
But the majority fails to properly apply the factors, substituting broad conclusory
statements and cursory reasoning for the careful balancing required under Barker.
When the factors are properly applied, it is clear that there is no constitutional
violation. I therefore dissent.
I. The history of this case
{¶ 33} The majority skips past the facts of the underlying charges. But
because “the peculiar circumstances of the case” are relevant to the speedy-trial
analysis, id. at 530-531, I will not.
{¶ 34} John Long was accused of approaching a line of cars in the drive-
through lane of a Clark gas-station convenience store in Springfield, Ohio. Going
down the line from one car to the next, Long walked up to the window of each car,
stuck out a gun, and demanded money from the people inside. Seeing what Long
was doing, the drivers tried to back out—but they were blocked in by other cars
and were unable to escape.
{¶ 35} Long fled the scene in a car when police arrived. After being
pursued for several blocks, Long jumped out of the car and attempted to get away
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on foot, but police caught up and apprehended him. Police believed that Long had
thrown a gun out of the car during the chase. When they retraced their route, they
found a PK .22-caliber semi-automatic handgun on the side of the road.
{¶ 36} Based on those events, Long was indicted on ten charges:
 five counts of aggravated robbery, each with an attendant firearm specification;
 one count of kidnapping;
 one count of failing to comply with a signal of a police officer;
 two weapons charges—having a weapon while under a disability and improper
handling of a firearm in a motor vehicle; and
 one count of tampering with evidence.
{¶ 37} Long worked out a deal with the state in which he pleaded guilty to
two of the aggravated-robbery counts and the failure-to-comply charge. The trial
court convicted him and sentenced him to 11 years in prison. Long appealed, and
on March 7, 2016, the Second District Court of Appeals reversed his convictions
because of deficiencies in the plea colloquy and remanded the matter to the trial
court. 2016-Ohio-837.
{¶ 38} Our review of Long’s speedy-trial claim begins with the remand
order. The trial court did not order that Long be transferred from prison to the
county jail for further proceedings until June 6, three months after the court of
appeals had entered its judgment. Long’s first court date following remand took
place on June 22, at which time the state offered Long the same plea deal he had
previously accepted. Long’s attorney said he needed to discuss the options with his
client and consider “whether or not any pretrial motions should be filed.” Defense
counsel asked the court to set the case for trial but did not object when the judge
scheduled the matter for a final pretrial instead. The judge told counsel that the
pretrial would be used “for a hearing on any motions that would get filed.”
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{¶ 39} Counsel filed no motions during that interim. When the parties
returned for the pretrial on September 1, the judge verified that discovery was
complete and that there were no other matters for the court to resolve before trial.
This time, the court directly asked defense counsel if he planned to file any pretrial
motions, and counsel said no. Satisfied that the parties were ready for trial, the
court scheduled a jury trial for September 28—a little over six months after the case
was remanded to the trial court. The court directed the parties to report for a pretrial
the week before the trial date.
{¶ 40} The day before the pretrial—exactly one week before trial was set to
begin—Long’s attorney filed a motion to dismiss on speedy-trial grounds. As a
result of the last-minute filing, the court postponed the jury trial and used the
September 28 trial date to hold a hearing on the motion instead. The trial court
issued its decision denying the motion a month later, on October 26.
{¶ 41} What happened to the case after that is unclear. The next item
reflected on the docket is the filing of Long’s second motion to dismiss nine months
later, on August 7, 2017. The trial court subsequently put on an entry saying that
Long’s case had been scheduled for a jury trial on August 16 but needed to be
rescheduled because another jury trial was ongoing. The August 16 trial date does
not appear on the docket. (Indeed, after the remand, none of the hearing dates in
this case appear on the docket.)
{¶ 42} The court ultimately denied Long’s second motion to dismiss, and
Long entered no-contest pleas to the weapons-under-disability and failure-to-
comply charges, both felonies of the third degree. The state and Long agreed to a
sentence of five years in prison, which the trial court imposed. In all, a period of
17 months passed between the dates that the court of appeals remanded the case to
the trial court and that Long filed his second motion to dismiss.
{¶ 43} Long filed a second appeal, contending that the charges against him
should have been dismissed because the state had violated his constitutional right
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to a speedy trial under the state and federal Constitutions. The Second District
determined that there had been no speedy-trial violation and upheld Long’s
convictions. 2018-Ohio-5163. We accepted Long’s petition for discretionary
review.
II. The right to a “speedy public trial” under the Ohio Constitution
{¶ 44} Article I, Section 10 of the Ohio Constitution provides: “In any trial,
in any court, the party accused shall be allowed * * * a speedy public trial by an
impartial jury * * *.” Long bases his speedy-trial claim in part on this clause but
offers no analysis of the state constitutional protection beyond a single citation to
it in his merit brief. Instead, both Long and the majority presume that the standards
set forth by the United States Supreme Court for reviewing speedy-trial claims
under the Sixth Amendment apply equally to the Ohio provision.
{¶ 45} The same assumption is reflected in this court’s precedent, which
has routinely lumped the two constitutional provisions together and resolved both
using federal standards, without any consideration of the text or history of the state
provision. See, e.g., State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 87-88; State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852
N.E.2d 706; State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72,
¶ 38. When addressing an Ohio constitutional provision that parallels its federal
counterpart, it’s worth noting that “even if the provisions were initially understood
to provide functionally the same protections, we are not bound to mirror subsequent
United States Supreme Court decisions delineating the scope of the protection.”
State v. Smith, ___ Ohio St.3d ___, 2020-Ohio-4441, __ N.E.3d __, ¶ 28.
Nevertheless, the parties have not advocated for a different mode of reviewing
claims under Ohio’s speedy-public-trial provision, so I will apply the standards
promulgated by the United States Supreme Court for analyzing federal
constitutional speedy-trial violations.
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III. Long’s federal constitutional speedy-trial right was not violated
{¶ 46} When evaluating a claim that a defendant’s Sixth Amendment right
to a speedy trial has been violated, we have been instructed to weigh four factors
commonly referred to as the “Barker factors.” The relevant considerations are
whether there was an “uncommonly long” delay before trial, whether the
government or the defendant is “more to blame” for that delay, whether the
defendant timely asserted his right to a speedy trial, and whether he suffered
prejudice from the delay. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct.
2686, 120 L.Ed.2d 520 (1992), citing Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33
L.Ed.2d 101.
{¶ 47} As everyone agrees, the court of appeals did not calculate Long’s
speedy-trial time properly. The court should have considered the full 17-month
period from the time the case was remanded from the court of appeals until Long
filed his second motion to dismiss in reviewing the trial court’s decision to deny
that motion.
{¶ 48} This miscalculation affected the court of appeals’ analysis with
respect to each of the Barker factors, and they should all be freshly reviewed. I
would have no problem remanding the case for the court of appeals to evaluate
Long’s claim and weigh the factors in view of the events of the entire 17 months.
But a majority of this court has chosen to conduct that review here, and unlike the
justice concurring in part and dissenting in part, I do find fault with the majority’s
analysis. The majority says that it is performing a de novo review of the speedy-
trial claim, but its analysis is cursory and unduly deferential to the court of appeals’
conclusions. Further, it fails to follow applicable federal precedent in its
application of the Barker factors.
{¶ 49} I will address each of the Barker factors in turn.
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A. The length of the delay
{¶ 50} The United States Supreme Court has told us that the length of the
delay is in part a “triggering mechanism”; in other words, the length of the delay
must be sufficiently prejudicial to warrant further review of the speedy-trial claim.
Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. There is no hard line for
when this threshold has been satisfied; it depends on the circumstances of the case.
Id. at 530-531. The Supreme Court has suggested that delays nearing one year are
often sufficient to trigger a full inquiry. Doggett, 505 U.S. at 652, 112 S.Ct. 2686,
120 L.Ed.2d 520, fn. 1 (“Depending on the nature of the charges, the lower courts
have generally found postaccusation delay ‘presumptively prejudicial’ at least as it
approaches one year” [emphasis added]). As the Supreme Court has explained,
“the delay that can be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge.” Barker at 531.
{¶ 51} If the length of time “has crossed the threshold dividing ordinary
from ‘presumptively prejudicial’ delay,” Doggett at 652, quoting Barker at 530,
then the court must engage in a second inquiry regarding the length of the delay.
The court should consider, “as one factor among several, the extent to which the
delay stretches beyond the bare minimum needed to trigger judicial examination of
the claim.” Id.{¶ 52} The length of the delay in this case is 17 months. As detailed above,
Long was facing a multitude of serious charges involving multiple victims and
witnesses; therefore, more time is tolerable than in cases involving simpler, lower-
level crimes. But it is also true that no additional discovery took place after remand
and the parties indicated early on that they were prepared to proceed to trial. Thus,
I agree with the majority’s conclusion that in this case, a 17-month delay is
sufficient to warrant further investigation into Long’s speedy-trial claim.
{¶ 53} But the majority skips over the second part of the length-of-the-delay
analysis. In this case, the delay extended just five months beyond the roughly one-
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year threshold for review. Thus, while this factor weighs in Long’s favor, it does
so only minimally. See State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780
N.E.2d 186, ¶ 66 (finding a delay of 17 months to be “barely” sufficient to trigger
review in a capital-murder case).
B. The reasons for the delay
{¶ 54} Let’s turn to the majority’s analysis of the second factor: the reason
for the delay. The majority begins by noting that “the court of appeals found that
* * * the delay after remand was due to the inattention of the trial court and the
state.” Majority opinion at ¶ 20. Because the court of appeals believed the total
delay lasted less than 12 months, it concluded that the state’s negligence weighed
only marginally in Long’s favor. 2018-Ohio-5163 at ¶ 20. Rather than review the
court of appeals’ conclusion, the majority just starts where the court of appeals left
off. It notes that the delay lasted 17 months and then declares: “When the length
of the delay is coupled with the trial court’s and the state’s inattention to Long’s
case on remand, we conclude that the second Barker factor decidedly tips in Long’s
favor.” Majority opinion at ¶ 20.
{¶ 55} The majority provides zero analysis of the reasons for the delay. It
simply defers to the court of appeals’ conclusions regarding the reasons and the
weight to be given those reasons and then turns the dial more in Long’s favor
because the length of time the court of appeals relied upon was incorrect.
{¶ 56} When evaluating the reasons for the delay, we have been instructed
that “different weights should be assigned to different reasons.” Barker, 407 U.S.
at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Reasons for the delay are characterized as
deliberate, neutral, or valid. Id. at 531; see also United States v. Black, 918 F.3d
243, 260 (2d Cir.2019); United States v. Hall, 551 F.3d 257, 272 (4th Cir.2009).
Deliberate attempts to hamper the defense weigh heavily against the government.
Barker at 531. Delays occasioned by official negligence or overcrowded courts are
“more neutral” and therefore weigh less heavily, though they ultimately count
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against the government. Id. A valid reason will “justify appropriate delay.” Id. In
addition, “a court should consider whether some of the delay is attributable to the
defendant.” United States v. Brown, 498 F.3d 523, 531 (6th Cir.2007).
{¶ 57} There is no suggestion that the government deliberately delayed in
bringing Long to trial. Much of the 17-month period between remand and Long’s
second motion to dismiss is attributable to government negligence; according to the
state, that negligence was initially due to the court’s case flow and subsequently
due to inattention. These reasons fall into the “neutral” category, though on balance
they weigh against the government.
{¶ 58} Still, not all of the delay is attributable to the state. Long’s attorney
indicated in June, at the first appearance following remand, that he was considering
filing pretrial motions; as a result, the trial court explicitly stated it would address
any defense motions at the September 1 pretrial. Rather than file any motions
during that time, Long waited two and a half months—until the trial was only a
week away—to file his motion to dismiss. When evaluating the reasons for the
delay, this court should not be blind to the fact that Long’s motion was timed in a
way that forced his trial to be delayed. Long is fully entitled to assert his speedy-
trial right, but his assertion of the right provides a valid justification for the court’s
decision to delay the first trial.
{¶ 59} Of course, while Long’s first motion precipitated the delay following
the first trial date, it does not excuse the court’s subsequent inaction on the case.
Thus, I would find that a greater portion of the delay is attributable to the state. But
because the reasons for the state’s delay are neutral, because Long’s attorney did
not object to the trial court’s scheduling of the case in the time leading up to the
first trial, and because some delay is justified as a result of Long’s late motion, this
factor weighs only marginally in Long’s favor.
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C. Long’s assertion of his speedy-trial right
{¶ 60} The third Barker factor involves the defendant’s assertion of his
speedy-trial right. The majority decides this factor in a single sentence—telling us
that because Long filed two motions to dismiss in which he contended that he had
been denied his constitutional right to a speedy trial, this factor weighs in his favor.
But a defendant’s having filed a motion to dismiss on speedy-trial grounds is not
dispositive. This factor is not just a box to be checked to make sure the defendant
raised the issue in the trial court (indeed, if he hadn’t, this would be an easy case).
{¶ 61} The question is not only whether the defendant asserted his right but
also when and how he did so. The right must be timely asserted. United States v.
Patterson, 872 F.3d 426, 435 (7th Cir.2017), citing Doggett, 505 U.S. at 651, 112
S.Ct. 2686, 120 L.Ed.2d 520 (the defendant must assert the right “in due course”);
Hall, 551 F.3d at 272. As the Barker court explained, the court should “weigh the
frequency and force of the objections as opposed to attaching significant weight to
a purely pro forma objection.” 407 U.S. at 529, 92 S.Ct. 2182, 33 L.Ed.2d 101. An
important consideration is whether a defendant’s assertions put the state and the
trial court on notice that he wanted a speedy trial. Black, 918 F.3d at 263. The
majority offers no analysis on any of these points.
{¶ 62} At the hearing on the first motion to dismiss, counsel presented a
written speedy-trial demand that Long had purportedly made in March 2015, soon
after his indictment, prior to his initial conviction and appeal. Long’s attorney
contended that this demand—which he said had been given to the prosecutor at the
time—was sufficient to notify the state that Long intended to assert his speedy-trial
rights after the case was remanded to the trial court. But Long’s attorney conceded
that the March 2015 demand had never been filed or made a part of the record nor
had Long filed a renewed demand after the remand.
{¶ 63} Moreover, as discussed above, the actions of Long’s attorney during
this period do not demonstrate an assertion of the right. Defense counsel made no
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objection to the court’s scheduling of the case. And while counsel did initially
request that the case be set for trial, he also told the court he might file pretrial
motions and acquiesced to the court’s decision to set a pretrial date to rule on those
anticipated motions. Counsel said nothing even remotely suggesting that his client
demanded a speedy trial in the first six months after the case had been remanded.
{¶ 64} Of course, when Long did file his first motion to dismiss six months
after remand, it might have put the prosecution and the court on notice that he
intended to assert that right going forward. But the timing of his motion—a week
before his jury trial was scheduled to begin—leaves the impression that it was filed
less out of serious concern about the speed at which his case was progressing and
more as a last-ditch attempt to avoid going to trial.
{¶ 65} Long’s assertion of his right in his first motion to dismiss also might
have had greater force had he followed it up with objections to the delay that came
after. Nine months passed after the trial court’s denial of Long’s first motion to
dismiss, during which, according to the docket, the court took no action on the case.
True, the obligation ultimately falls to the government to bring a defendant to trial
in a constitutionally compliant manner, but that does not negate the defendant’s
concomitant obligation to assert his right. Barker, 407 U.S. at 529, 92 S.Ct. 2182,
33 L.Ed.2d 101. It is notable that Long did nothing on the case during this time—
at no time did his attorney file a renewed demand for a speedy trial or ask to have
the case put on the docket to address the delay on the record. And despite the fact
that none of the scheduled hearings in this case appear on the docket, the trial court
indicated that Long’s case had been scheduled for trial on August 16. In that event,
Long’s tactics leading up to his second trial date were identical to those leading up
to his first: he waited until a week before trial to file his second motion to dismiss.
{¶ 66} Thus, the only two times Long can be said to have asserted his
speedy-trial right following remand both occurred a week before he was scheduled
to have the trial he ostensibly wanted. And in both of these instances, his assertions
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of the right came after the delays he complained of—delays that he had not objected
to—had already occurred. The timing of Long’s motions just before trial and his
general acquiescence to the delays otherwise does not convey an earnest desire to
have his case move quickly. This factor does not weigh in support of finding a
speedy-trial violation. See Patterson, 872 F.3d at 435-436 (defendant’s motions to
dismiss amounted to “belated assertions” of his speedy-trial right).
D. Prejudice from the delay
{¶ 67} The majority spends the most time analyzing the fourth Barker
factor—prejudice. As the majority notes, when evaluating prejudice from pretrial
delay, we have been told to consider the extent to which the accused has suffered
three types of harms: “oppressive pretrial incarceration,” “anxiety and concern,”
and impairment to his defense. Barker at 532. The impact of the delay on the
ability of the defendant to prepare his defense is the most important of the three.
United States v. Frias, 893 F.3d 1268, 1273 (10th Cir.2018), citing Barker at 532.
{¶ 68} Long has not alleged any actual prejudice, nor could he—by every
indication, the delay in this case worked to his advantage. He initially pleaded
guilty to three counts, two of which were felonies of the first degree, and received
an 11-year prison sentence. But the state’s plea offer improved significantly with
the passage of time: the state agreed to dismiss all the high-level felonies in
exchange for his plea to two third-degree felonies and his agreement to a five-year
sentence. As the Barker court explained, the speedy-trial right is unusual in that
deprivation of the right sometimes works to the advantage of the accused. 407 U.S.
at 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (“Delay is not an uncommon defense tactic.
As the time between the commission of the crime and trial lengthens, witnesses
may become unavailable or their memories may fade”).
{¶ 69} Thus, Long’s only viable argument is that notwithstanding the lack
of particularized prejudice, the delay in this case was so excessive that prejudice
should be presumed. This is different from the question whether the length of the
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delay is “presumptively prejudicial” for the purposes of triggering the full-fledged
Barker inquiry. Maples v. Stegall, 427 F.3d 1020, 1030 (6th Cir.2005). The
prejudice analysis that occurs at the outset of the court’s review merely requires
that the delay be sufficiently long to state a speedy-trial claim—usually as it
approaches one year. Id. Conversely, presuming prejudice under the fourth Barker
factor depends on whether the delay was excessive. Id.; see also Doggett, 505 U.S.
at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (“excessive delay presumptively
compromises the reliability of trial in ways that neither party can prove or, for that
matter, identify”).
{¶ 70} As explained above, some portions of the delay were justified by
Long’s assent to the trial court’s scheduling of the case prior to the first trial and
the last-minute nature of his first motion to dismiss. Long cannot be prejudiced by
delays to which he contributed. Barker at 529 (“if delay is attributable to the
defendant, then his waiver may be given effect under standard waiver doctrine”).
Rather, under the prejudice inquiry, we look at the portion of the delay that is
attributable to the government. See Maples at 1031; Barker at 533-534.
{¶ 71} When the delay results from government negligence, whether or not
prejudice will be presumed depends on the length of the delay. United States v.
Howard, 218 F.3d 556, 564-565 (6th Cir.2000), citing Doggett at 657 (“our
toleration of such negligence varies inversely with its protractedness”). “[T]o
warrant granting relief, negligence unaccompanied by particularized trial prejudice
must have lasted longer than negligence demonstrably causing such prejudice.”
Doggett at 657.
{¶ 72} The delays fairly attributable to governmental inattention are the
three-month period that passed between Long’s remand and his first court date and
the nine-month delay that followed the trial court’s denial of his first motion to
dismiss. It is unusual for a case to be delayed for nine months without explanation,
and Long’s incarceration during this time presents one of the concerns to which the
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speedy-trial right is addressed. See Barker at 532. Nevertheless, a total delay of
12 to 13 months is not excessive enough that prejudice should be presumed.
Indeed, courts have typically declined to presume prejudice under even longer
delays. See Barker, 107 U.S. at 533-534, 92 S.Ct. 2182, 33 L.Ed.2d 101 (declining
to presume prejudice for a delay of more than four years); Maples at 1031 (citing
cases). Therefore, this factor weighs against finding a speedy-trial violation.
E. Balancing the factors
{¶ 73} The extent to which the total length of the delay—17 months—
extended beyond the threshold needed to trigger inquiry was not substantial and
therefore weighs only minimally in Long’s favor. And while the nine-month period
in which the government neglected to take any action on Long’s case weighs in
Long’s favor, it does so only marginally because Long caused and acquiesced in
earlier delays in the case. On the other hand, Long did not assert his speedy-trial
right in a timely fashion and raised the issue only after the fact, in separate motions
to dismiss filed one week before each of his scheduled trials. Moreover, he suffered
no actual prejudice from the delay and the delay was not so excessive as to presume
prejudice. On balance, these factors counsel against finding that Long’s
constitutional right to a speedy trial was violated.
IV. Conclusion
{¶ 74} Under proper application of the Barker factors, Long has not
suffered a deprivation of his constitutional speedy-trial rights. I respectfully dissent
from the majority’s decision to vacate his convictions.
_________________
Daniel P. Driscoll, Clark County Prosecuting Attorney, and John M. Lintz,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, State Public Defender, and Patrick T. Clark, Assistant
State Public Defender, for appellant.
_________________
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